The case founders at the stage of determining whether there is a duty of care. I find that the possibility of an assault by one patron on another in a fitness club is not reasonably foreseeable; there is no evidence that security is needed since such assaults are plainly not common on the evidence before me. The risk seems no higher where the assailant is a non-patron, as might be the case here. It is not a customary or obvious risk, such as food on the floor in a food store as in Kerr v. Loblaws, supra. Whether the matter is analyzed under the Occupiers Liability Act or negligence law, the result is the same. On the facts of this case there is no duty of care and no standard of care that has been breached.
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